Canada: Last Call For Relevant Appeals From The OSC

To the extent it was ever really open, the door to relevant
appeals from decisions of the Ontario Securities Commission
("OSC" or the "Commission") has inexorably been
swinging closed. The presumption cultivated in the jurisprudence of
the Supreme Court of Canada that the Commission engages its
specialized expertise on all matters that come before it, has made
an appeal an exercise in futility. The appellate courts in Ontario
have made it clear that they are not enthusiastic about the
prospect of reviewing, let alone overturning, a decision of the
Commission on a matter within its presumed expertise. As the
standard of a review on an appeal is now the deferential standard
of "reasonableness" in practically all cases, it would
take a disastrously bad decision for the courts to consider
overturning a merits decision of the Commission. To date, the
Commission has never been overturned on a merits decision.

One fleeting exception was the decision of the Divisional Court
in Finkelstein et al.v Ontario Securities
Commission,1 discussed further below, in which the
Commission's finding of liability for insider trading was
overturned against one of the respondents, Francis Cheng. The OSC
appealed the decision and the Commission's finding of liability
was restored. It was in this context that one last opening emerged
to argue that decisions of the Commission on certain issues of law
should be reviewed by a standard of "correctness" rather
than "reasonableness". Shortly before the appeal was
heard, a decision of the British Columbia Court of Appeal in
Poonian v. British Columbia Securities Commission2 was
released in which the Court held that the British Columbia
Securities Commission's ("BCSC") interpretation of
the "disgorgement" section of the B.C. Securities
Act should be reviewed by a standard of correctness on the
basis that the Act gave the same remedial power to the B.C. Supreme
Court in an identically worded section. The B.C. Court of Appeal
applied the decision of the Supreme Court of Canada in Rogers
Communications Inc. v. Society of Composers, Authors and Music
Publishers of Canada,3 and held that it must be presumed
that the Legislature would not have intended the courts and the
Commission to interpret the section differently.

The Court of Appeal ruled that it was an error for the BCSC to
order disgorgement against all the respondents on a joint and
several basis, thereby requiring the Poonians to disgorge money
that they had not received. Surprisingly, the BCSC did not seek
leave to appeal to the SCC.

Back in Ontario, Cheng and co-respondent Miller sought leave to
make supplementary submissions on the standard of review based on
the decision of the B.C. Court of Appeal. After granting leave to
hear submissions on the point, the Ontario Court of Appeal thought
better of it and declined to rule on the issue, leaving it for
"another day". Leave to appeal to the Supreme Court of
Canada has been sought by Cheng and Miller on the issue of the
standard of review.

In light of the decision of the B.C. Court of Appeal in
Poonian, which reintroduces in B.C. a correctness standard
of review for issues of law in which the courts exercise a
concurrent jurisdiction, there is a possibility that the Supreme
Court will adjudicate this issue on appeal from Ontario.

What are the Prospects for a Correctness Standard on
Appeal?

Probably not good. Since the decision of the Supreme Court of
Canada in Dunsmuir v. New Brunswick,4 the trend line in
Supreme Court decisions has been one directional in favour of
letting the provincial securities commissions interpret their
governing securities legislation as they see fit. Indeed, in
McLean v. BCSC,5 the Court expressed irritation that
it has become "fashionable" for defence counsel to try to
have the decisions of administrative tribunals on questions of law
reviewed on appeal by a standard of correctness (can they not just
get with the program?). The Supreme Court has reiterated that, the
"modern approach to judicial review" recognizes that
courts "may not be as well qualified as a given agency to
provide interpretations of that agency's constitutive statute
that make sense given the broad policy context within which that
agency must work".6

The exception to an assumption of greater expertise on the part
of the administrative tribunal to interpret its "home"
statute, alluded to so tantalizingly in Dunsmuir, is with
respect to a true jurisdictional issue or more broadly, to
"general questions of law that are both of central
importance to the legal system as a whole and outside of the
adjudicator's specialized area of expertise". The
"wave" of appeals7 in which appellants have
(annoyingly) suggested that their issue of law is such an issue,
has not yet revealed any. The Supreme Court's goal of
introducing "predictability and clarity" into judicial
review is steadily erasing the Dunsmuir exception to one
of mere legend.

This leaves the issue of where the legislature has given the
courts a concurrent jurisdiction to interpret and apply statutory
provisions in the tribunal's "home" statute. Even the
Supreme Court has recognised that it is a bit of a stretch to infer
that the legislature intended the interpretation of an
administrative tribunal to prevail over that of the courts when it
has given the same jurisdiction to the courts. Plus, there is the
prospect of inconsistent decisions by the tribunal and the
courts.

This was the basis for the decision of the Supreme Court in
Rogers, which arose in the context of the Copyright Board
under the Copyright Act, R.S.C. 1985, c. C-42:

It would be inconsistent for the court to review a legal
question on judicial review of a decision of the Board on a
deferential standard and decide exactly the same legal question
de novo if it arose in an infringement action in the court
at first instance. It would be equally inconsistent if on appeal
from a judicial review, the appeal court were to approach a legal
question decided by the Board on a deferential standard, but adopt
a correctness standard on an appeal from a decision of a court at
first instance on the same legal question.8

The question is whether the decision in Rogers carves
out a category of statutory provisions in which there is a shared
jurisdiction with the courts at first instance from the presumption
of a deferential standard of review? Justice Rothstein, writing for
the majority in Rogers, referred to the "unusual
statutory scheme" under consideration. This turn of phrase was
latched onto by the Divisional Court in Cornish v. OSC to
distinguish the copyright regime from the securities regime, in
which the courts have "long recognized the special expertise
of securities commissions".9 However, if one considers the full
quote from Justice Rothstein, it allows no such distinction:

Because of the unusual statutory scheme under which the Board
and the court may each have to consider the same legal question at
first instance, it must be inferred that the legislative intent was
not to recognize superior expertise of the Board relative to the
court with respect to such legal questions.10

The logic of the reasoning of the majority in Rogers is
unassailable. The Supreme Court appears to recognize that there is
a limit to how far the presumption of a legislative intent to defer
to a specialized tribunal can be taken. In Ontario it is apparent
that neither the Divisional Court or the Court of Appeal are
enthusiastic about this development. In addition to the Divisional
Court side-stepping the issue in Cornish and the Court of
Appeal side-stepping the issue in Finkelstein, the Court
of Appeal also refused leave to appeal from the Divisional Court in
Phillips v. OSC,11 in which it was argued that the
legislature could not have intended the courts to apply a
deferential standard of review with respect to the legal test for
fraud under s.126.1 of the Securities Act. 12
Accordingly, it will be necessary for the Supreme Court to weigh in
on this issue in the securities context for there to be any
movement away from the reasonableness standard in Ontario.

The issue of concurrent jurisdiction as outlined in
Rogers was raised before the Supreme Court in
McLean. In that case the issue was whether the BCSC's
interpretation of the statutory limitation period in the Act should
be reviewed by a standard of correctness or reasonableness. The
Commission's position was that the limitation period was a
provision within its home statute so, in accordance with
Dunsmuir, its interpretation should be accorded deference.
McLean argued that as limitation periods are of general application
and are routinely interpreted and applied by the courts, judicial
review of the Commission decision should be by a standard of
correctness, the standard by which a decision of a judge would be
reviewed on appeal.

The Supreme Court opted in favour of the reasonableness
standard. However, critically, the Court ruled that there was no
issue of concurrent jurisdiction in McLean as only the
B.C. Commission had jurisdiction to consider the provision at first
instance. Accordingly, Rogers was distinguished. The Court
also held that the case did not fall within the general issue of
law exception provided for in Dunsmuir because although
limitation periods generally are of importance in the
legal system, the limitation period in the B.C. Securities
Act was not. In this regard, it is fair to observe that the
limitation periods in the provincial Securities Acts are
differently constructed from the typical limitation periods
contained in the provincial statutes for civil actions. In
particular, the limitation periods are triggered by the occurrence
of certain "events" rather than a discoverability
analysis.

Accordingly, McLean did not present the best case, or
even a particularly good case, for the application of the
principles in Rogers to be considered in the securities
regulatory context. In light of the fact that the principles in
Rogers have been applied by the B.C. Court of Appeal in
Poonian in the securities regulatory context, and have
been applied in other administrative contexts, including by the
Supreme Court of Canada with respect to a decision of the Quebec
Human Rights Tribunal, the issue is ripe for consideration by the
Supreme Court in the securities context.

At the Cross-Roads

If the Supreme Court decides to hear the appeal from Cheng and
Miller, the implications are potentially quite significant as there
are a number of provisions of the Securities Act which
contain important legal concepts with respect to which the courts
and the Commission have concurrent jurisdiction. Accordingly, there
is the potential for a roll-back of the post-Dunsmuir
presumption that all issues of law arising from the Securities
Act decided by the Commission will be accorded a deferential
standard of review. This will no doubt make the Supreme Court a bit
queasy as it runs contrary to the principle of deference to the
specialized expertise of the securities commissions which the Court
has been championing over the last decade.

Accordingly, the Cheng and Miller (potential) appeal represents
an important cross-roads in the development of the jurisprudence
for securities law in Canada; important because there is an urgent
need for a rebalancing of the respective roles of the courts and
the Commission. As matters stand, too much reliance is being placed
on the Commission to decide important securities law issues at
first instance without the benefit of subsequent scrutiny and
refinement on appeal. In my respectful view, the courts have
consistently over-estimated the expertise of the Commission on
issues of securities law and under-estimated the benefits of the
development of substantive principles of securities law through
appellate review. As a result, respondents to OSC enforcement
proceedings are being unfairly denied a meaningful right of
appeal.

The Real Intent of the Legislature: Complementary Roles for
the Commission and the Courts

The legal issues that arise from enforcement proceedings under
the Securities Act raise issues of law that are not easily
confined to the jurisdiction of the Commission and often intersect
with the governance of business corporations, subject to principles
of corporate law and overseen by the courts. For a start, a
critically important area of concurrent jurisdiction is with
respect to the disclosure regime in the Securities Act, in
which the courts are routinely called upon to adjudicate cases
involving prospectus misrepresentation and secondary market
liability. The role of the courts is essential because the mandate
of the Commission does not include facilitating compensation for
investors. Determining civil liability for disclosure breaches will
continue to be the domain of the courts, and it necessarily
involves deciding fundamental issues of securities law, including
the disclosure of material facts and material changes within the
context of the Securities Act (see the decision of the
Supreme Court in Kerr v. Danier Leather, which
involved a detailed analysis by the Court of the distinction
between material facts and material changes in the context of an
alleged prospectus misrepresentation).13 Securities class
actions based on prospectus misrepresentations and secondary market
liability based on faulty continuous disclosure are an important
part of the legal system.

With the courts interpreting and applying the same legal
concepts within the disclosure regime, it is counterintuitive and
illogical to conclude that the legislature intended the Commission
to be considered more expert that the courts in deciding those
issues. However, that is not the current state of the law in
Ontario as applied by the Divisional Court, even since
Rogers. Specifically, in Cornish, notwithstanding
Cornish's submission that the legal principles defining a
material change should be reviewed by a standard of correctness,
the Divisional Court held that the interpretation of a material
change is an issue falling within the specialized expertise of the
Commission and concluded that the Commission's interpretation
would be reviewed by a reasonableness standard.14

Although properly a topic for another paper due its complexity,
it is worth noting that the law on materiality has been compromised
by the evangelical adoption by the courts of the notion of the
Commission's expertise. The decision in Cornish is
concerning because the Divisional Court supported the
Commission's reliance on its own expertise as a substitute for
evidence in determining whether there had been a material change
requiring timely disclosure. According to the Divisional Court,
because the Commission is a specialized tribunal, while shareholder
or expert evidence may be relevant or useful, it is not
necessary.15 In Rex Diamonds v. OSC, after the
customary genuflection to the expertise of the Commission, the
Divisional Court upheld the Commission's decision that a
material change had occurred but did so on the basis of a different
but equally erroneous analysis of the legal test for materiality.16 In
both cases the assumption that the Commission is expert in
determining disclosure decisions permeated the reasoning of the
court beyond the standard of review into the analysis of the
substantive law. Leave to appeal to the Court of Appeal was sought
and dismissed in both cases.

Another important area of concurrent jurisdiction is the
jurisdiction of the Ontario Court of Justice under section 122 of
the Securities Act to hear quasi-criminal charges. This
jurisdiction has serious implications for an accused. A person is
guilty of an offence can be ordered to pay a fine of up to $5
million or to serve a term of imprisonment of up five years, less a
day. The range of misconduct under the Securities Act that
can constitute an offence includes making a misrepresentation to
OSC staff in an investigation, a misrepresentation in a prospectus
or other public filing or, more broadly, a contravention of Ontario
securities law. Specific reference is made to section 76, the
insider trading provision. Proceedings under s.122 are regularly
brought by OSC staff, including for alleged insider trading (albeit
not so often recently as OSC staff have opted for hearings before
the Commission). In recent years, the newly formed Joint Serious
Offences Team ("JSOT") has brought numerous
quasi-criminal cases for alleged contraventions of Ontario
securities law, including fraud under s.126.1(b), unregistered
trading contrary to s.25(1) and trading without a prospectus as
required by s.53(1). JSOT has also brought a number of Criminal
Code cases for fraud. The OSC's press releases emphasise the
importance of these cases to the securities regulatory
apparatus:

JSOT was established by the OSC as an enforcement partnership
between the OSC, the Royal Canadian Mounted Police Financial Crime
program and the Ontario Provincial Police Anti-Rackets Branch. The
primary objective of JSOT is to protect investors and further
enhance confidence in the Canadian capital markets through
effective enforcement. This is accomplished through collaborative
investigations of serious violations of the law using the
provisions of the Securities Act or the Criminal Code.

It is clear that there is a robust concurrent jurisdiction in
the courts in which alleged breaches of the Securities Act
are adjudicated, including misrepresentation, fraud, insider
trading and tipping, and unregistered trading. The serious offences
and penalties suggest that the legislature has full confidence in
the ability of the courts to interpret the Securities Act
at least as proficiently as the Commission. Accordingly, a
presumption that the Commission is better qualified than the courts
to interpret the same provisions of the Securities Act
upon which administrative proceedings and quasi-criminal
proceedings are brought cannot be sustained based on divining
legislative intent.

It is important to have uniform and consistent jurisprudence
with respect to the fundamental legal principles in the securities
regulatory regime. Allowing meaningful appeals from the decisions
of the Commission on issues of law, reviewed on appeal by a
standard of correctness, will improve the quality of the
jurisprudence. The refinement of the law through appellate practice
is a well-recognised feature of our legal system. A lack of rigour
through appellate scrutiny will lead to less principled
decision-making, as reflected in the examples above.

No analysis has been undertaken in the decisions to date of the
significant concurrent jurisdiction afforded the courts and
securities commissions. Certainly this is not addressed by the
Supreme Court in Pezim v. British Columbia17 or
McLean. Rather, the imposition of a deferential
"reasonableness" standard of review with respect to
decisions of the Commission is largely based on jurisprudence
concerning different administrative tribunals. As outlined above,
the concurrent jurisdiction reflects the important role of the
courts, alongside the Commission, in applying and enforcing
securities laws. It does not appear that any analysis has been
undertaken from a policy perspective as to the appropriate standard
of review to apply to the decision of the Commission pursuant to
the statutory right of appeal under s.9 of the Securities
Act.

Is it Ok to be Reasonably Wrong?

The notion that it is acceptable for the Commission to make a
decision that contains errors of law that could affect the outcome
of the case, so long as those errors are within a range of
reasonable interpretations or outcomes, is not consistent with the
rule of law in the common law tradition. That is particularly the
case in the context of proceedings in which the Commission can
order multi-million dollar financial penalties and orders banning
individuals from participating in the capital markets. It is a
deeply disconcerting prospect for a person to face an enforcement
proceeding with such potentially profound consequences without a
genuine right of appeal to seek to correct, at a minimum, errors of
law.

Both England and Australia have administrative appeals tribunals
that hear appeals on the merits. Recourse to the courts is limited
to judicial review applications, which are confined to addressing
errors of law. While in Australia judicial review is limited to
errors of law that go to jurisdiction, this distinction was set
aside in England. As stated by Lord Denning,

"I would suggest that this distinction should now be
discarded ... The way to get things right is to hold thus: no court
or tribunal has any jurisdiction to make an error of law on which
the decision of the case depends. If it makes such an error, it
goes outside its jurisdiction and certiorari will lie to correct
it.18

All questions of law decided by administrative decision-makers
are reviewed on the standard of correctness. Similarly in New
Zealand, the interpretation of the governing statute of an
administrative body is always considered to be a question of law
for the courts and is reviewed by the standard of correctness.

Is it too much to ask to get the law right? Apparently it is in
Canada, as long as the tribunal is reasonably wrong.

The Importance of a Right Of Appeal from Decisions of the
Commission

It is sobering to consider that since the year 2000, of the 174
enforcement proceedings that have proceeded to a contested hearing
on only seven occasions have the allegations been dismissed in
full, exonerating the respondents.19 The asymmetries in the OSC's
enforcement proceedings to the disadvantage of respondents are well
known. Unlike a civil proceeding, only OSC staff have investigation
powers (which are routinely used for discovery purposes). The costs
regime is one-way, against respondents. Although respondents
receive disclosure, unlike in a criminal or quasi criminal
proceeding, they must also disclose to OSC staff any documents they
intend to rely on and witness statements of any witnesses they
intend to call. Any problems with disclosure or any other
procedural issues are not reviewable prior to the hearing, based on
the Divisional Court's concept of prematurity.

As noted above, there has never been a successful appeal from a
merits decision of the Commission. An enviable track record
indeed.

It should not be forgotten that in October 2004 the Standing
Committee on Finance and Economic Affairs recommended that
"the adjudicative function of the OSC should be separated from
its other functions, based on the recommendations of the Fairness
Committee". Following exhaustive consultation and
research, the Fairness Committee had concluded:

We are satisfied that the nature of the apprehension of bias has
become sufficiently acute as to not only undermine the
Commission's adjudicative process, but also the integrity of
the Commission as a whole among the many constituencies that we
interviewed. Matters of institutional loyalty, the involvement of
the Chair in the major cases, the increased penalties, the sense
that "the cards are stacked against them", the home-court
advantage, the lengthy criminal law-like trials, and the
Commission's aggressive enforcement stance, which likely will
only increase over time, all combine to make a compelling case for
a separate adjudicative body.

The implementation of the Standing Committee's
recommendation was to occur failing substantial progress towards
the establishment of a single National securities regulator within
12 months. "Tweaking" the existing structure would not,
in the view of the Committee, alleviate the problem. Fourteen years
and a few tweaks later, the Commission continues to adjudicate
enforcement proceedings. I don't think that restricting the
right of appeal from the decisions of the Commission in the interim
was the solution the Fairness Committee or the Standing Committee
had in mind.

For the reasons outlined above, the issue of the standard of
review for Commission decisions on appeal is one of heightened
importance. The trend of limiting the right of appeal needs to be
brought to a halt, urgently. Reviewing decisions on questions of
law over which the courts share jurisdiction under the
Securities Act by a standard of correctness would be a
good start. Failure to do so will further undermine the already
shaky confidence in the process.

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